Judiciary in bold move to entrench mediation as a means of dispute resolution
In a marked departure from litigation; the traditional and conventional way of resolving disputes in Kenyan courts, the Judiciary has since May 2016 operated a court-annexed mediation program at the Milimani Law Courts. This alternative dispute resolution mechanism has proved to be less tedious, less expensive and more amicable to the disputing parties.
The Court Annexed Mediation has been operational as a pilot project at the Commercial and Family Divisions of the High Court at Milimani and is set to be rolled out countrywide soon. Under the pilot program, over 2,000 cases have been screened to check if they are fit for mediation and over 500 with an approximate value of KSh13 billion have been referred to mediation. The court-sanctioned mediation program not only provides Kenyans with low-cost and less acrimonious environment for resolving their disputes but has also helped clear case backlog which has been a major impediment to the dispensation of justice in the country.
Mediation is defined as a process in which a neutral third-party assists disputing parties to understand their underlying concerns and in negotiating a possible settlement of their dispute. The third-party listens to the evidence, helps the litigants to understand each other’s viewpoint regarding the controversy, and then facilitates the negotiation of an amicable resolution. Unlike in courts where the system is adversarial, parties resolving their dispute through mediation often remain friends after the case is resolved because mediators seek to create “win-win” situations where everyone is a winner.
With Court-annexed mediation being a relatively new phenomenon in Kenya’s judicial system, there is a scarcity of certified and experienced mediators. To fill this critical gap, the Mediation Accreditation Committee which certifies court mandated mediators advertised for qualified and interested members of the public to apply for accreditation as mediators. So far about a hundred applicants have been accredited. The process of accreditation is continuous as the Committee works on building a comprehensive database of mediators with diverse experience across the country.
The Mediation Accreditation Committee requires that for one to be accredited as a mediator, he or she must undergo a 40-hour mediation course and also be a member of a professional body among other requirements. Members of the Mediation Accreditation Committee are drawn from various institutions such as the Law Society of Kenya, Attorney General’s office, Chartered Institute of Arbitrators, Kenya Private Sector Alliance, Institute of Public Accountants, Certified Public Secretaries, Kenya Bankers, Federation of Kenya Employers, the Central Organization of Trade Unions. Under Section 59/A (2) of Civil Procedure Act, MAC is mandated to maintain a register of accredited mediators and to enforce a code of ethics for the mediators.
MAC Registrar, Moses Wanjala explains that because mediators are neither judicial officers nor subject to the normal code of conduct for public officers, there is need to put in place a system for enforcing ethical conduct for mediators.
“It is the statutory duty of MAC to ensure that a proper ethical standard among the mediators is observed through the enforcement of a code of ethics for mediators to ensure that mediators conduct themselves in a manner that engenders public trust thereby entrenching mediation as a mainstream dispute resolution mechanism in the country.” said Wanjala.
It is hoped therefore that mediation will in the fullness of time form an integral part of a modern Kenyan judicial system. The move by the Judiciary to have mediation as one of the means available to litigants is laudable with Kenyans hoping it will replace the ‘see you in court’ culture with “let us resolve this matter through mediation” ethos.
